Resisting Arrest in Texas | Dallas Defense Lawyer

Defining Resisting Arrest in Texas

Resisting arrest, as defined by Texas law, occurs when a person intentionally prevents or obstructs a peace officer by using force from effecting an arrest, search, or transportation. This law is outlined in Section 38.03 of the Texas Penal Code.

The Legal Consequences of Resisting Arrest

In Texas, resisting arrest is a Class A misdemeanor, and a conviction is punishable by up to a year in the county jail and a $4,000 fine.

If the person uses a deadly weapon to resist the arrest, the offense is elevated to a third-degree felony. This can lead to a prison sentence of 2 to 10 years and a fine of up to $10,000.

Examples of Resisting Arrest

Let’s consider a few examples to better understand what constitutes resisting arrest. If an individual physically struggles against an officer’s attempt to handcuff them, this would be considered resisting arrest. Similarly, if a person runs away or hides from an officer who is clearly attempting to detain them, this too could be classified as resistance.

The Importance of Legal Representation

If you or a loved one is facing a resisting arrest offense, it’s imperative to promptly consult with a Dallas resisting arrest attorney.

The team at Varghese Summersett includes Board Certified criminal defense lawyers and former prosecutors with more than four decades of combined experience fighting all manner of misdemeanors and felonies in North Texas.

What’s the Difference Between Resisting Arrest and Evading Arrest

Resisting arrest is different from evading arrest because evading primarily involves the act of fleeing or attempting to escape from law enforcement. Resisting, on the other hand, focuses on the act of trying to make an arrest more difficult by some action of the arrestee, such as pulling, pushing, turning.

What is considered “using force” against police in Texas?

In resisting arrest cases, prosecutors must prove that the defendant was about to be arrested, searched, or transported before the alleged use of force.

Using force to resist being detained by police doesn’t rise to the level of resisting arrest.

Also, just refusing to cooperate with an arrest isn’t enough to be convicted of resisting arrest.

Texas courts have repeatedly distinguished between the use of force directed at an officer and the use of force directed away from an officer.

Examples of Texas courts finding sufficient (or insufficient) evidence to support a conviction for resisting arrest:

• In Humphreys v. State, 565 S.W.2d 59, 60 (Tex.Crim.App.1978), the court found that striking an officer’s arms away, pushing at an officer, and struggling with an officer was sufficient.
• In Raymond v. State, 640 S.W.2d 678 (Tex.App.-El Paso 1982, pet. ref’d), the court found that simply pulling away was insufficient.
• In Mayfield v. State, 758 S.W.2d 371, 374 (Tex.App.-Amarillo 1988, no pet.), the court found that attempts by the subject to “shoulder” or “elbow” an officer out of the car, jerking against the officer’s grasp, and engaging in a “pretty violent” struggle was sufficient.
• In Bryant v. State, 923 S.W.2d 199, 208 (Tex.App.-Waco 1996, pet. ref’d), the court found that stiffening up and jerking back with a violent backward was sufficient;
• In Torres v. State, 103 S.W.3d 623, 627 (Tex.App.-San Antonio 2003, no pet.), the court found that raising up an arm and knocking an officer’s hand away was sufficient;
• In Sartain v. State, 228 S.W.3d 416, 425 (Tex.App.-Fort Worth 2007, pet. ref’d), the court found that flailing arms, striking an officer, pushing against an officer, struggling, and causing a fall was sufficient.

Some Texas cases, including Leos, 880 S.W.2d 180, explicitly held that only force directed toward an officer supports a conviction.

Most cases, however, involve clearly more significant actions than pulling away from an officer’s restraint.

Examples include:

• In Burke v. State, 692 S.W.2d 570, 571 (Tex.App.-Houston [14th Dist.] 1985, no pet.), the court found that striking an officer’s arm away was sufficient.
  In Mayfield v. State, 758 S.W.2d at 373 (1988), the court found that using elbows and shoulder to shove the arresting officer out of a moving car was sufficient;
• In Luxton v. State, 941 S.W.2d 339, 340–41 (Tex.App.-Fort Worth 1997, no pet.), the court found that pulling away, plus struggling or fighting with officers was sufficient;
• In Haliburton v. State, 80 S.W.3d 309, 312–13 (Tex.App.-Fort Worth 2002, no pet.), the court found that kicking at an officer but missing was sufficient.
• In Dobbs v. Texas in 2022, the Texas Court of Criminal Appeals concluded that “the statutory language plainly requires a use of force directed ‘against’ the officer himself, not against his broader goal of effectuating an arrest.”

Texas Penal Code Sec. 38.03 expounds on resisting arrest.

What is the punishment for resisting arrest in Dallas?

A resisting arrest conviction, a Class A misdemeanor, carries up to a year in jail and a $4,000 fine.

The combination of this charge with the charge for the original offense compounds the legal jeopardy.

A Dallas resisting arrest attorney is highly encouraged if you or a family member is facing such a predicament.

What is the penalty for evading arrest in Dallas?

Evading arrest is typically a Class A misdemeanor if it’s on foot and punishable by up to a year in jail and a $4,000 fine.

However, if the defendant had a previous conviction, it’s a state jail felony offense, punishable by up to six months to two years in jail and up to a $10,000 fine.

If evading arrest in a motor vehicle, or if someone suffers severe bodily injury or death, the offense and penalty increase.

Can you lawfully resist an arrest in Texas if the arrest is unlawful?

No. In Texas, you are likely to be charged with resisting arrest despite it being unlawful.

However, an evading arrest offense is unlikely to warrant a charge if the original reason for an arrest was unlawful.

Of course, in some rare cases, there could be certain situations when using force to resist arrest could be justifiable.

A Dallas resisting arrest attorney at Varghese Summersett will review the facts of your case and offer possible defenses.

Is resisting arrest ever legal in Texas?

Texas Penal Code Sec. 9.31(c) offers two examples in which using force to resist an arrest or search is justified:

1. If a police officer (or person acting at their direction) uses or attempts to use greater force than necessary to make an arrest or search, the use of force is justified.

2. If a person reasonably believes the force is immediately necessary to protect against a police officer’s (or other person’s) use or attempted use of greater force than necessary, the resistance is justified.

An experienced Dallas resisting arrest attorney at Varghese Summersett can effectively argue such defenses with the prosecutors, which could lead to reduced charges or a dismissal.

What is the mental state requirement for resisting arrest in Dallas?

Most criminal offenses in Texas have a mental state requirement. Only a few offenses, however, allow for an allegation of “intentionally,” and resisting arrest is one of them.

Prosecutors must prove that the defendant acted with intent, meaning they had the conscious goal to use force to prevent or obstruct arrest, search, or transport.

Need a Dallas resisting arrest lawyer? Call Varghese Summersett.

If you or a family member is facing a charge of resisting arrest, it’s important to contact an experienced defense attorney as soon as possible.

The team at Varghese Summersett aggressively fights to defend our client’s rights and works tirelessly to win the most favorable outcome.

For a complimentary consultation where one of our attorneys will review your case and your options, call us at 214-903-4000.